Military Can't Get It Right on Sex Crimes

U.S. Army Brigadier General Jeffrey A. Sinclair, 51, one of only a handful of senior officers to face court-martial in the last 60 years, was given an extremely light sentence -- no jail time and a relatively small fine -- in a case of sexual misconduct involving a female officer under his command. Only weeks before the case ended with a whimper yesterday, he appeared to be heading toward life in prison.

Sinclair is a perfect example of why such prosecutions have to be removed from the military chain of command. The judge learned from an exchange of e-mails that prosecutors had been pressured by superior officers to move ahead with a weakening case and refuse a plea deal.

The plague of sexual assault in the military has been in the spotlight. There were at least 26,000 such crimes last year, by the Pentagon’s estimate, only 10 percent of which were pursued.

Worse, the military has a record of botching prosecutions, when they were initiated at all. A commanding officer's knee-jerk reaction often is to protect a buddy, keep a “good soldier” and foster unit cohesion, none of which protect the victim. She (or he) is pressured to be quiet or risk being sidelined, ostracized or transferred. Most often, the victim just sucks it up and life goes on.

But in the Sinclair case, another kind of pressure -- to protect the victim to show the military can police its own -- seemed to have been at work.

During the pre-trial, Congress was considering a bill by Senator Kristen Gillibrand to remove prosecutions from the chain of command. That may explain why officials insisted prosecutors should reject a plea that would have resulted in substantial jail time and move ahead, despite solid evidence that the complainant would be a terrible witness at trial because some of her earlier statements were untrue.

The prosecution pressed on even though a prosecutor resigned after telling superiors that he thought the case was weak and the plea was the best they could get. Then, the judge obtained the e-mails that indicated interference from above. He suspended the trial and left the way open for Sinclair to plead to much lesser charges of mistreating his mistress, disobeying orders not to contact her and misusing his government credit card. The Army dropped charges that he forced her mistress to “perform oral sex,” threatened to kill her and her family if she ratted on him, and engaged in “open and notorious” sex in a parked car and on a hotel balcony.

Under ordinary circumstances, interference from military higher-ups would have protected the superior officer, and the victim would have gone away quietly or lost her case. It is an aberration that the interference initially hurt the perpetrator this time. But in a perverse twist, the effort by the military to show that it would no longer tolerate misconduct wound up working to Sinclair's advantage. When the judge ferreted out the e-mails showing undue command influence, Sinclair was allowed to enter a second plea. It forces him to pay a $20,000 fine, but allows him to remain in the military, serve no jail time and keep his pension and other benefits.

The bungling of the Sinclair affair is the best proof that the military probably can't handle its own cases of criminal sexual misconduct, even when it is determined to do the right thing. Instead, it provides a powerful argument for Gillibrand’s bill, which would keep prosecutions within the military but move them outside the chain of command. The best course for the accused and accuser is for decisions to be removed from those who won’t drop a weak case or may fail to prosecute a strong one for extrajudicial reasons. Justice can’t be blind if commanders can interfere.

(Margaret Carlson is a Bloomberg View columnist.)

To contact the writer of this article: Margaret Carlson at mcarlson3@bloomberg.net.

To contact the editor responsible for this article: Max Berley in Washington at mberley@bloomberg.net.

Margaret Carlson is a Bloomberg View columnist. A former White House correspondent for Time, she was also Time's first female columnist. She appeared on CNN's "Capital Gang" for 15 years.
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